Gloth v Brusco Equities
2003 NY Slip Op 18917 [1 AD3d 294]
November 25, 2003
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 28, 2004


Alexander J.P. Gloth, Appellant,
v
Brusco Equities, LLC, Inc., et al., Respondents.

— Order, Supreme Court, New York County (Harold Beeler, J.), entered January 2, 2003, which granted defendants' motion for summary judgment and dismissed the complaint, unanimously affirmed, without costs.

There is no evidence that defendants had actual or constructive notice of the defective condition that caused plaintiff's injury (see Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646 [1996]). The court properly disregarded plaintiff's affidavit on the issue of notice since it contradicted his prior deposition testimony and was clearly tailored to create an issue of fact (Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]). Concur—Nardelli, J.P., Andrias, Rosenberger and Friedman, JJ.